Defamation in Scots law: consultation

Footnotes

1. The Commission have recently begun work on their Tenth Programme of Law Reform which can be accessed at https://www.scotlawcom.gov.uk/law-reform/tenth-programme-of-law-reform-consultation/

2. The 2013 Act can be accessed at http://www.legislation.gov.uk/ukpga/2013/26/contents

3. The Discussion Paper is available at https://www.scotlawcom.gov.uk/files/5114/5820/6101/Discussion_Paper_on_Defamation_DP_No_161.pdf. The draft Bill is available at https://www.scotlawcom.gov.uk/files/5715/0123/0435/Defamation_and_Malicious_Publications_Scotland_Bill_-_consultation_draft_-_Bill.pdf

4. The Report is available at https://www.scotlawcom.gov.uk/files/7315/1316/5353/Report_on_Defamation_Report_No_248.pdf

5. These are the Defamation Act 1952 available at http://www.legislation.gov.uk/ukpga/Geo6and1Eliz2/15-16/66; the Defamation Act 1996 available at http://www.legislation.gov.uk/ukpga/1996/31; the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) available at http://www.legislation.gov.uk/uksi/2002/2013/contents/made; and sections 6, 7(9), 15, 16(5) (in so far as it relates to sections 6 and 7(9)) and 17 of the Defamation Act 2013 available at http://www.legislation.gov.uk/ukpga/2013/26/contents/enacted

6. See paragraph 1.12 of the Commission’s Discussion Paper.

7. In English law, libel is a type of defamation that is expressed in a written or other permanent form.

8. The provisions enacted in Scotland were agreed to by a legislative consent motion of the Scottish Parliament.

9. See paragraphs 1.17 to 1.21 of the Commission’s Discussion Paper for more on the approach taken.

10. Available at https://www.scotlawcom.gov.uk/files/2415/1316/5437/BRIA_-_Report_on_Defamation_Report_No_248.pdf

11. See chapter twelve of the their Discussion Paper and chapter ten of their Report.

12. See paragraph 10.7 of their Report.

13. See Death of a Good Name – Defamation and the Deceased: A Consultation Paper published in January 2011, available at https://www.gov.scot/Publications/2011/01/11092246/0

14. The position of the Scottish Government is set out in a letter dated 27 October 2011, available at https://www2.gov.scot/Resource/Doc/254430/0123401.pdf

15. The collated responses to the Commission’s Discussion Paper can be accessed at https://www.scotlawcom.gov.uk/files/8914/8034/5443/Table_of_consolidated_responses_-_Defamation.pdf while the responses to the Scottish Government’s previous consultation on this matter can be accessed at https://www2.gov.scot/Topics/Justice/law/damages/defamationresponses

16. This section corresponds to chapter three of the Commission’s Discussion Paper and chapter two of their Report.

17. Reynolds v Times Newspaper Ltd [2001] 2 AC 127 at 201.

18. The Commission, however, recommend that it should be competent to bring defamation proceedings in respect of a statement only where the statement has been communicated to a person other than its subject, with that person having seen or heard it and understood its general meaning. See recommendation 1 of their Report.

19. Sim v Stretch [1936] 2 All ER 1237 at 1240. There are alternative formulations of the test. Although found in an English House of Lords decision, this test has been accepted as representing the law of Scotland in Steele v Scottish Daily Record and Sunday Mail 1970 SLT 53 and in Thomson v News Group Newspapers 1992 GWD 14-825.

20. See paragraph 1.12 of their Report.

21. Defamation Act 2009. A copy of the Act can be accessed at http://www.irishstatutebook.ie/eli/2009/act/31/enacted/en/print#sec6

22. See the case of The Sunday Times v. The United Kingdom, (Application no. 6538/17) at paragraph 49 for a summation of this requirement.

23. A recent judgment issued in a defamation claim in England looked at 7 different definitions. See Thornton v Telegraph Media Group Ltd [2010] EWHC 1414.

24. [2005] EWCA Civ 75.

25. [2010] EWHC 1414.

26. See Economou v de Freitas [2016] EWHC 1853 paragraph 13.

27. See paragraph 3.19 of the Commission’s Discussion Paper.

28. Lachaux v Independent Print Ltd [2017] EWCA Civ 1327.

29. See Part One above for a list of the Commission’s recommendations that the Scottish Government are minded to proceed with.

30. See paragraph 2.11 of the Commission’s Report.

31. See the Report of the Scottish Civil Courts Review, Volume 1 at Chapter 9, paragraph 103, available here http://www.scotcourts.gov.uk/docs/default-source/civil-courts-reform/report-of-the-scottish-civil-courts-review-vol-1-chapt-1---9.pdf?sfvrsn=4

32. See paragraph 2.15 of the Commission’s Report.

33. The report on reform of defamation law in Northern Ireland recommends adoption of the threshold test of serious harm in that jurisdiction, although it also accepts that the argument for doing so is less compelling than for adopting other reforms – see the report’s Executive Summary. The report was completed by Dr Andrew Scott and published on 19 July 2016. A copy can be accessed at http://www.nilawcommission.gov.uk/reform_of_defamation_law_.htm

34. See paragraph 2.11 of the Commission’s Report.

35. See analysis available at https://inforrm.org/2018/06/26/judicial-statistics-2017-issued-defamation-claims-up-by-40-highest-for-three-years/

36. For instance, in the case of Tierbefreier eV v. Germany, (Application no. 45292/09), at paragraph 49, the ECtHR held that the protection of a company’s reputation may be considered a legitimate aim for restricting the Article 10 right to freedom of expression.

37. In Steel and Morris v United Kingdom (Application no. 68416/01), one of the reasons why the ECtHR found that the award of damages was disproportionate was because the company did not have to establish that they suffered any financial loss as a result of publication of the defamatory statement - see paragraph 96,. Section 1(2) of the 2013 Act alters this. Such a requirement was also recommended by the Faulks Committee in 1975.(1975, Cmnd 5909, para. 342).

38. Burki v Seventy Thirty Ltd & Ors [2018] EWHC 2151 QB, paragraph 205.

39. Brett Wilson LLP v Person(s) Unknown [2015] EWHC 2628 QB – see paragraph 30.

40. Part Six of this consultation discusses further these types of proceedings.

41. Relevant cases include Lewis v Daily Telegraph Ltd [1964] AC 234 and Waverley Housing Management Ltd v BBC 1993 GWD 17-117.

42. A small enterprise is one with fewer than 50 employees and an annual turnover not exceeding £50 million; a medium enterprise is one with fewer than 250 employees and an annual turnover not exceeding £250 million pounds – see http://ec.europa.eu/growth/smes/business-friendly-environment/sme-definition_en

43. Defamation proceedings cannot be brought by bodies formed with the object of obtaining financial gain and who employ ten or more full-time persons. See Part 2, Division 2, section 9 of the Australian Defamation Act 2005 - see https://www.legislation.sa.gov.au/LZ/C/A/DEFAMATION%20ACT%202005/CURRENT/2005.50.AUTH.PDF

44. A firm that employs fewer than 10 people and has an annual turnover not exceeding £2 million is defined as a micro enterprise - see http://ec.europa.eu/growth/smes/business-friendly-environment/sme-definition_nl

45. [1993] AC 534.

46. See paragraph 2.26-2.29 of the Commission’s Report.

47. See para 2.27 of their Report on Defamation.

48. See Halsey v Brotherhood (1881-82) LR 19 Ch 386.

49. Available at http://www.legislation.gov.uk/ukpga/2017/14/pdfs/ukpga_20170014_en.pdf

50. For who might be considered a primary actor in patents, trade marks and registered designs see sections 1(2), 2(2), and 4(3) of the 2017 Act respectively.

51. This section corresponds to chapter seven of the Commission’s Discussion Paper and chapter four of their Report.

52. See McLean v Bernstein (1900) 8 SLT 42.

53. Available at http://www.legislation.gov.uk/ukpga/1996/31/contents

54. Available at http://www.legislation.gov.uk/uksi/2002/2013/contents/made

55. An internet intermediary is any person who has provided the means by which allegedly defamatory material is published on the internet, and therefore have at their disposal the technology to delete, amend or edit that same material. An operator of a website is not defined in the 2013 Act, but it may be assumed that it is a person with effective control over the content of the website – see Duncan and Neill on Defamation (4^th edn, 2015), para 6.32.

56. See https://www.gov.uk/government/consultations/internet-safety-strategy-green-paper for information on the consultation and the UK Government’s response thereto.

57. The only substantive deviation is the insertion of clause 3(3)(g), which deals with moderation of statements.

58. For the definitions see clause 3(2) of the draft Bill in the Commission’s report.

59. This section corresponds to chapter five of the Commission’s Discussion Paper and chapter three of their Report.

60. Massie v McCaig, 2013, SC343, as previously explained in Archer v John Ritchie & Co 1891 18 R 719 at page 729.

61. By ‘fair’, the law means that the defender must have genuinely and honestly held the opinion echoed in the comment – see Merivale v Carson (1887) 20 QBD 275 at 281.

62. The Commission respond to this issue at paragraph 3.34 of their Report.

63. This section corresponds to discussion on the offer of amends remedy in chapter nine of the Commission’s Discussion Paper and chapter six of their Report.

64. Unless it is a qualified offer, in which case proceedings continue in respect of that part of the action to which the offer does not apply.

65. The Commission respond to these concerns at paragraph 6.26 of their Report.

66. This section corresponds to chapters thirteen of the Commission’s Discussion Paper and chapter nine of their Report.

67. Paragraphs 13.10 to 13.25 of the Discussion Paper give a detailed outline of what the Commission understand constitutes each of these categories.

68. See section 3 of the draft Bill.

69. See para 9.25 of the Commission’s Report.

70. This section corresponds to chapter ten of the Commission’s Discussion Paper and chapter seven of their Report.

71. See section 19A of the Prescription and Limitation (Scotland) Act 1973 and paragraph 10.11 of the Commission’s Discussion Paper.

72. The period of limitation for claims in defamation in England and Wales has been 1 year since 1996 – see paragraph 7.18 of the Commission’s Report.

73. See paragraph 3.98 of the Law Commission’s paper Limitation of Actions available at http://lawcom.gov.uk/app/uploads/2015/03/lc270_Limitation_of_Actions.pdf

74. See para 3.98, as read with paras 4.38-4.46.

75. In 2002, the then Government accepted the Law Commission’s recommendations in principle, subject to further consideration of certain aspects of the report. On 19 November 2009, however, the Government announced to the House of Commons that it would not include the recommendations in the Civil Law Reform Bill and would not be taking the reforms forward, see http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm091119/wmstext/91119m0003.htm#09111944000027

76. See Bezanson, ‘Libel Law and the Realities of Litigation: Setting the Record Straight’ (1985) Iowa Law Review, 71, 215-233; ‘The Libel Suit in Retrospect: What Plaintiffs Want and What Plaintiffs Get’ (1986) California Law Review, 74, 789-808.

77. See for example Comber v Greater Glasgow Health Board, 1989, SLT 639.

78. See Eleanor J Russell, "Denying the discretion — a trilogy of cases" 2013 J.R. 95.

79. See the report by the Justice Committee ‘I won’t see you in court: alternative dispute resolution in Scotland’ at page 3 for a description of various types of dispute resolution, available here https://sp-bpr-en-prod-cdnep.azureedge.net/published/J/2018/10/1/I-won-t-see-you-in-court--alternative-dispute-resolution-in-Scotland/JS052018R9.pdf

80. Section 19CA of the Prescription and Limitation (Scotland) Act 1973 already makes provision for this with respect to arbitration. This option would seek to extend this provision to other forms of dispute resolution.